Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118

Introduction

• This case deals with the exercise of judicial discretion while granting bail under Section 437 and Section 439 of the Code of Criminal Procedure, 1973 (CrPC).
• The facts and circumstances of the cases illustrate the factors and conditions under which bail may be granted to an accused.

Facts

• In this case the appellants were suspended police officer who were accused of the offence of murdering a notorious dacoit.
• The Magistrate declined to release them on bail then they approached session judge under Section 439 of CrPC and secured released on bail.
• The Delhi High Court cancelled the bail granted by the Session Court during appeal against which a Special Leave Petition (SLP) appeal was filed before Supreme Court.

Issues Involved

• Whether it is possible to define exact factors which should be considered by the Courts while granting or rejecting the bail?
• Whether there is an overriding consideration in granting bail?

Observations

• The Court observed that the Section 437(1) of CrPC is only concerned with the Court of Magistrate and there is no provision under Section 437(1), when the accused is for the first time produced after initial arrest before the Court of Session or before HC.
• If the accused with the allegation against him of the offence punishable with death or imprisonment for life, then the Court of Magistrate has no other option except rejection of the bail.
• Under Section 439(1) it confers the special powers to the HC or Session Court in respect of bail.
• The common point in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offences are committed; the position and status of the accused with reference to the victim and the witnesses.
• The Session Court and the HC may be approached by the accused after refusal of bail by the Magistrate under Section 437.
• There are two paramount considerations to be looked into while granting bail:
  • Likelihood of the accused fleeing from justice; and
  • Tampering with prosecution evidence related to ensuring a fair trial of the case in a court of Justice.
• The Court said as far as the bail of the offence punishable with death or life imprisonment is concerned, it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors.

Conclusion

The Court finally held that the Session Court was wrong while granting bail to the accused and unable to appreciate the evidence, hence appeals dismissed.

Notes

CrPC

Section 437(1) is described as follows:

Section 437 - When bail may be taken in case of non-bailable offence.—

• (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the HC or Court of session, he may be released on bail, but—
  • (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
  • (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

Section 439 - Special powers of HC or Court of Session regarding bail —

• (1) A High Court or Court of Session may direct, —
  • (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
  • (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.